ON CHOOSING JUSTICES

By Jose M. Ferrer III

IN recent years, students of the U.S. Supreme Court would leaf through new decisions in hopes of finding an opinion written by Hugo Black or John Harlan. Their extraordinary capacity to clarify and make vivid the issues in a case made their judgments preferred reading to serious scholars of the inexact science that is law. Because they often disagreed, there inevitably were cherished occasions when the two met head to head, as the writers of the major contending opinions. Black--more frequently in the majority--would crisply muster the facts and reasoning that led to the court's ruling, in seemingly impregnable logic. Then came Harlan, calmly and subtly pinpointing flaws in the majority viewpoint, exhaustively detailing his own different but fully persuasive logic. The reader was sometimes left dazzled and confused--but also enlightened about the nature of law as a living language of civilized society.

Here was the essence of the intellect in action, which the Supreme Court alone among U.S. institutions is capable of supplying. With carefully written precision Justices Black and Harlan provoked and inspired others, on and off the court, to better thinking about law and American democracy. As the court began its new term last week, their absence seemed to have left "the nine black beetles" not only fewer but somehow grayer--less distinct, less vigorous, even, for the moment, less important. Consideration of the most significant cases has been postponed and, with the unexpected withdrawal of Virginia Representative Richard Poff as a potential nominee, it now seemed possible that many weeks might pass before two new Justices took their seats.

The President will thus have the opportunity, if he wishes it, to think anew about his chance to reshape the bench. Clearly, he will still be able to create a court of so-called "strict constructionists." An aide has spoken grandly of "a Nixon court," outlasting its creator and mirroring his views for a decade or more. But there is an obligation that goes beyond that consideration, an obligation to the court itself that rests not on the number of votes the President can now change but on the caliber of two men he is replacing.

The suspicion nags, though, that intellectual excellence does not weigh heavily. The talk instead is of regional representation, Republican Party membership, age and, for the first time, the serious possibility of a woman Justice. The use of extralegal criteria in choosing a new Justice has ample historical precedent and is not entirely baseless. After all, it would be appropriate that Alabama's Black should be succeeded by another Southerner. To the extent that questions of balance are the overriding concern, however, they tend to rest on a limited conception of the court.

Hardly anyone today still believes that the nine justices can impartially approach every issue without any prejudice or preconception. Far more popular is the revisionist view of the high bench as merely another political body where, in the end, individual beliefs overshadow legal precedent. Insofar as that is true, it makes sense to choose new members of the court with an eye to reflecting the national body politic. Nonetheless, even though the Justices cannot be free of their own beliefs, there remains a conviction--held doubtless by President Nixon, among many others--that the members of the court can, do and should struggle to approach open-mindedness as much as is humanly possible.

The principal instrument of that struggle is their collective power of reasoning. The importance of intelligence on the court is not so much that it promises the right result, but that it will serve to expose and carve away the clutter--emotion, prejudice, unexamined tenets of historical faith--that can get in the way of decision making. If the decision is not always the best, then at least a well-reasoned opinion gives judges, lawyers and judicial scholars a chance to spy out its fatal inconsistencies.

The common image of the Justices as nine fiercely independent men has much truth in it, but tends to obscure a more important reality: that those same nine men must rub and scrape against one another, again and again, to come up with decisions that, ideally, at least five can agree on. In that process, one or two exceptional minds can make a considerable difference since the amount of cross-pollination is extensive. Every Friday during the term, the Justices closet themselves in a conference room and engage in what must be the most exciting weekly exchange of ideas in the Western world, verbally thrashing out the points at issue in current cases. Drawing on these discussions, the Justices then work independently on their assigned opinions, but early drafts are regularly circulated among colleagues for criticisms and suggestions. The impact of a brilliant legal mind thus goes far beyond what the man actually writes himself.

Despite the clouded resignation of Abe Fortas, the attempted impeachment of William O. Douglas, and the spectacle of the failed Haynsworth and Carswell nominations, the court is still held in considerable reverence by the American people. Yet historians can point out long periods when the court's influence and importance in U.S. life made it a very lame third branch of government indeed. Such a decline in significance might happen again, particularly since the court now seems certain to back away from the particular style of activism that characterized its years under Chief Justice Earl Warren. Even so, building on the changes in American society initiated by the Warren court, the court today could very well serve as a steadying voice of reason at a time of disquiet and national self-questioning.

To provide that voice, however, will require more than the choice of a jurist whose vote can be relied upon. It is true that men with uncertain credentials have matured on the bench. Then too, many Presidents have been surprised and disappointed by the unexpected decisions of their nominees. But it does seem probable that the surer Nixon wants to be of his nominees, the less he will have to settle for in the quality of their minds. While such a course can almost guarantee a bench to Nixon's liking, it might also ensure that the "Nixon court" will be as little remembered as the court of, say, Chief Justice Morrison Waite.

If the court is to continue to have a role in influencing what the people as a whole say and think, then a rigorous, unflagging legal intelligence ought to be the quality prized above all others in the selection of new Justices. What is at stake is not just a possible period of temporary eclipse for the court. If Nixon's appointees lack intellectual distinction, then he may well reap a depressing and paradoxical reward. In placing overriding emphasis on the predictability of his choices, the President may find that he has left the court intellectually ill-equipped to press effectively the national philosophy of conservative moderation that he so obviously hopes will prevail.

-Jose M. Ferrer III

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